OPINION: Why MTN, again?

It seems MTN Nigeria is never too far from the speed dial to trouble. Three years ago, the telecommunications company, which has the dominant share of the mobile telecoms market in Nigeria, was slapped with a $5.2 billion (R79 billion) fine for failing to disconnect 5.1 million subscribers after the registration deadline.

After a back-and-forth, a bloodied nose and a shake-up in which the MTN Nigeria CEO, Michael Ikpoki, lost his job, the company coughed up $1.7 billion in renegotiated fines.

Now, there is the familiar ringtone of trouble and that last fine is looking like child’s play.

The Central Bank of Nigeria (CBN) announced last week that MTN should, “with immediate effect”, refund the sum of $8.1 billion, “illegally repatriated by MTN on the basis of the illegally issued CCIs [certificates of capital importation]” by four banks.

The CBN also fined the banks – Standard Chartered Bank, Citibank, Stanbic IBTC and Diamond Bank – sums ranging from N250 million to N2.4 billion (R10.5 million to R101 million) for their roles in the transaction.

On top of this, it was reported on Wednesday that the office of the Attorney-General of the Federation is claiming that MTN underpaid taxes by $2 billion over the past 10 years, compounding the company’s misery.

The question in the gilded yellow corridors of the telecoms giant is: Why us, again?

Twenty-four hours after the CBN announcement last week, MTN shares on the JSE plunged 30%, later rallying slightly. But $3 billion in market value was wiped off in one fell swoop.

Reading the press reports, you would think that MTN raided the Treasury with the help of the banks, and made away with billions of dollars to pay its offshore investors.

However, the news came as MTN struggles to shed its negative image by listing more shares on the Nigerian Stock Exchange.

Also, in response to shrinking margins from voice, the company has been struggling to head off growing competition in data services, as a result of which it acquired a $154 million pay TV licence for three years, which has barely been activated.

So, why MTN?

CBN said that, in contravention of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act 1995 and the Foreign Exchange Manual 2006, the company illegally converted shareholder loans into equity with the help of the four banks, and transferred the funds out of the country to some offshore investors without its final approval.

A number of companies operating in Nigeria are quite comfortable breaking the rules (mainly as a result of weak regulation) or colluding with insiders, or both. In seven cases out of ten when they are caught, they sound as if investment is a favour and warn that future foreign investments could be in danger, as if investments thrive in anarchy.

As a result of years of incompetent regulation and corruption, the corporate tail is used to wagging the regulatory dog; and a number of companies have long forgotten how to do the right thing.

Sure, there is a thin line between regulatory competence and malicious exuberance, but the impression given by some financial reports that the basis for the CBN’s action is unclear is, to say the least, incorrect.

In fact, a Reuters report insinuated that, unlike the situation three years ago when the Nigerian Communications Commission slapped a $5.2 billion fine on MTN, for example, even though the penalty seemed excessive, the rationale and provisions of the law were clearer than they are in this case.

That is wrong and misleading. The reporting of the $8.1 billion case may have been mugged in transmission, perhaps because of CBN’s messaging, but the facts are clear.

Section 15 (5) of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act 1995, states: “The repatriation referred to in subsection (4) – which deals with foreign exchange imported into Nigeria and its remittance – of this section shall be communicated by an authorised dealer to the central bank within 14 days of the repatriation, and the central bank shall furnish same to the minister on a monthly basis for information and statistical purposes only.”

Section 16 makes non-reporting an offence, while Section 29 makes false reporting an offence, which in an extreme case could be fined by up to 10 times the amount of foreign currency involved.

The foreign exchange manual makes pretty much the same point.

MTN has denied any wrongdoing, saying: “No dividends have been declared or paid by MTN Nigeria other than pursuant to CCIs issued by our bankers and with the approval of the CBN, as required by law.”

The question is: What type of approval did MTN’s bankers get and which law, other than the ones in reference, was the company referring to?

Whether MTN unknowingly believed its bankers, instigated the situation or acted in cahoots with them, it has to deal with the claim of the CBN, that in Standard Chartered Bank’s letter of December 10 2009, for example, the bank allegedly said its illegal conversion of shareholder’s loan was “an unintended conversion”.

An unintended conversion that allowed a substantial part of the $8.1 billion to pass the bank’s notice must have been, well, knowingly unintended.

MTN’s statements so far do not indicate that the company is unaware of the admission of the so-called unintended conversion, or that in the CBN’s meetings with the company and its banks – also cited in the letters to the four banks – the company put forward any satisfactory defence to prove its innocence in an investigation that spanned 30 months.

The banks have been remarkably silent. The central bank’s letters to the commercial banks highlighted a pattern of systemic and troubling abuse – not only limited to the transaction with MTN – but also extending to a number of other customers as well.

It is also noteworthy that a top figure in one of the four banks involved, who now plays a role in MTN, had a hand in preparing the 2006 Foreign Exchange Manual.

The spotlight on dodgy dealings by the banks, including those with significant foreign holdings, may well be a watershed moment for the CBN governor, who has been frequently accused of indulging the banks because of his own background as a commercial banker.

There is also the argument that the CBN’s action has a political undertone. It has been said that MTN is a victim of a cash-strapped government that is just as desperate for money ahead of the next election as it is to search and destroy any real or imaginary financial nests of its political enemies.

A source, in fact, said the only thing that could have unleashed CBN sniffer dogs on MTN for an “offence” that was committed a decade ago, “is reasonable suspicion that the offshore shareholders in question may well be Nigerian big political guns on the wrong side of the government or those with strong links to them”.

Whatever may be the political motive, it would be foolish for the central bank to go after MTN without a strong legal basis to stand on. MTN may do well to swallow the bitter pill without despairing or falling for the bait of persecution and self-pity.

The central bank has neither imposed a fine on MTN nor claimed that the $8.1 billion in question was not legally earned. The catastrophic difference in exchange rate between 2007 and now makes it looks punitive, but a refund is not a fine.

If the original sum remitted is more or less, the company should say so with proof, rather than having grasped at the straws of the Senate’s clearance last November. Monetary policy is squarely the job of the central bank, not the Senate.

MTN should make the refund, cure the defective transfer and remit what it has legitimately earned legally. It could use this adversity – or go to court, if it feels hard done by.

Asking why, MTN, will not solve the problem.

* Ishiekwene is the managing director/editor in chief of Nigerian publication The Interview and a member of the board of the Global Editors’ Network.